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Davis v. State

Supreme Court of Georgia

October 2, 2017

DAVIS
v.
THE STATE.

          HINES, CHIEF JUSTICE.

         Following the denial of his motion for new trial, as amended, Darius Jamal Davis appeals his convictions and sentences for malice murder, criminal attempt to commit armed robbery, aggravated assault with a deadly weapon, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony in connection with the fatal shooting of Anton Johnson and the wounding of Jamal Makanjoula. Davis challenges the trial court's permitting cross-examination of alibi witnesses about prior altercations with him, the failure of the trial court to give a limiting instruction regarding the evidence of prior altercations, the admission into evidence of certain other testimony at trial, and the effectiveness of his trial counsel. Finding the challenges to be without merit, we affirm.[1]

         Construed to support the verdicts, the evidence showed the following. Coindictees Armond Gibson, Rolandus White, and Clifford Harris discussed how they could make money on a stolen television; Harris needed to sell it quickly in order to make a payment involved in his probation. In an attempt to find a buyer, Harris drove the men around in his sister-in-law's red Pontiac Grand Prix, and at one point they stopped in West End to offer the television to a restaurant employee known to Gibson. They could not make the sale and as they were leaving the restaurant they ran into Davis and another man. Davis and the other man said that they were trying to rob someone who sold drugs, and that they had successfully robbed him in the past. Davis described the potential robbery as "sweet." Gibson was concerned that the potential robbery victim might be armed, so he volunteered to enter the target's shop to see if that was the case. Harris walked back to the car while the others walked to a nearby tattoo shop. Gibson entered the shop first, let in by employee Makanjoula; the shop was kept locked because three weeks earlier the shop owner, Johnson, was shot and robbed in his apartment, and also the shop had previously been the scene of a robbery.

         Gibson approached Johnson, asking about his rates, and at some point during this exchange, Gibson received a call from Harris. Five to fifteen minutes later, as Gibson was walking to the door to leave, Davis, who was wearing a dark blue hoodie, and White approached outside the door. The two men were let inside the shop, and one of them drew a handgun and said, "Give it up!" Davis and White each had a handgun. As Johnson attempted to reach for a handgun he kept in the shop, Davis fired multiple shots, hitting Johnson and Makanjoula. Davis, Gibson, and White fled the shop together, ran to the car, got inside, and told Harris to drive away. Moments later, Davis got a call and then informed the group "one alive and one dead." Gibson and White asked Davis why he shot Johnson, and Davis replied, "He moved. That's the procedure when you move."

         When police arrived at the crime scene, they found Johnson dead; he had sustained two gunshot wounds - one to his head and the other to his torso. The shot causing the torso wound entered through his back, and the murder weapon was likely fired from over three feet away. Makanjoula was shot in the shoulder. Police found three ounces of marijuana and ten grams of methamphetamine in the tattoo shop, and over a thousand dollars in Johnson's pocket. A license plate number provided by a witness was substantially similar to that of the red Pontiac driven by Harris.

         After Harris was arrested, Gibson and White went to Harris's apartment and told his girlfriend that White, Gibson, and Davis went into the tattoo parlor without Harris, and that Davis was the one that killed somebody.

         When Davis and Harris were housed in jail together, Davis threatened Harris; he asked Harris if he wanted to change his story, and said that "all rats must die."

         1.Davis does not contest the legal sufficiency of the evidence of his guilt. Nevertheless, as is this Court's general practice in appeals of murder cases, we have reviewed the record and conclude that the evidence at trial was sufficient to enable a rational trier of fact to find Davis guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Davis contends that the trial court abused its discretion in permitting the State to cross-examine his mother and sister, who were his alibi witnesses, about prior altercations with his family and consequent interventions by police. He argues that such questioning improperly put his character at issue to his prejudice, and that the resulting testimony was inadmissible under OCGA § 24-4-404 (b) ("Rule 404 (b)"), [2] and if not improper under Rule 404 (b), then inadmissible under OCGA § 24-4-403 ("Rule 403").[3] But, the argument is unavailing.

         Davis called his mother and his sister to testify to establish his alibi defense. Collectively, the women testified on direct examination that on January 16, 2013, Davis went to school and was home by 5:15 p.m. or 5:30 p.m.; that his girlfriend came over around 7:30 p.m.- 8:00 p.m. and that Davis and his girlfriend walked in the neighborhood and were home by 9:00 p.m.; that Davis was home the entire time between 5:00 p.m.-7:30 p.m., when the shooting occurred; that Davis's mother took him to school every day because he did not have a car; that they left roughly around 8:15 a.m. every morning; and that Davis and his girlfriend usually walked up and down the street or went to the park together. When the mother was asked how she remembered the events of January 16, 2013, as they related to Davis, she answered, "[b]ecause that was a daily routine. Nothing changed, period." The mother further testified that she did not contact the police with the alibi information at the time of her son's arrest because she felt that it would not have made a difference and that she was waiting to relate the information at trial; the sister also testified that she did not call the police to provide any of this alibi information because she was waiting until Davis had his day in court.

         On cross-examination of Davis's mother, the State sought to explore her statement that providing the alibi information to police would not have made a difference; the State offered that the reason she felt that way was because she had called the police on numerous occasions regarding altercations involving Davis and that in her view it had not made any difference. The mother responded that she felt that the police "just don't do the job." Defense counsel objected on the basis of relevance, arguing that such questioning was just a way for the State to get in bad character evidence, which would be prejudicial to Davis. The State responded that the sought testimony was relevant to test the mother's knowledge as to where her son was on specific dates based on police reports of Davis beating her or another family member; the State wanted to demonstrate that the mother generally did not know about Davis's whereabouts and to show her bias and veracity, specifically that she was afraid of physical consequences at the hand of her son if she did not testify favorably for him. The trial court overruled the objection and permitted the questioning. The State then cross-examined the mother and sister about various incidents, asking whether the witness knew where Davis was on a given date and/or time; although the State mentioned a few specifics of some of the incidents the focus was on whether the witness knew where Davis was on the date in question, and whether it was credible that Davis was living with his mother and/or sister at the time of the crimes on trial because of Davis's history of altercations with his family.[4]

         First, in objecting below to the cross-examination, Davis did not invoke the provisions of either Rule 404 (b) or Rule 403 regarding alleged other acts. See Gibbs v. State, 341 Ga.App. 316, 318 (1) (800 S.E.2d 385) (2017). Accordingly, his argument is considered under plain-error review, [5] and the argument fails. The general requirements for the admission of evidence of other acts under Rule 404(b) are relevance to an issue other than character, admissibility to the extent that the evidence is sufficient to permit a jury to conclude by a preponderance of proof that the defendant actually committed the other acts, and passing muster under Rule 403, which weighs the relevance of evidence of other acts against, inter alia, unfair prejudice to the defendant; application of the bar of Rule 403 is principally a matter of the trial court's discretion but is an extraordinary remedy which should be used only sparingly. Olds v. State, 299 Ga. 65, 69-70 (2) (786 S.E.2d 633) (2016).

         Here, the purpose of the cross-examination was not to introduce into evidence other acts or transactions involving Davis for the uses outlined in Rule 404 (b). Indeed, the incidents briefly described in cross-examination were not similar to the crimes on trial; rather, they were examples of family violence involving or known by Davis's mother and/or sister. The cross-examinations of the mother and sister were for the purpose of impeaching their testimony about Davis's whereabouts at the time of the crimes on trial and demonstrating their motives for offering alibi testimony, i.e., that they feared violent reprisal from Davis. While Rule 404 (b) is applicable to impeachment evidence, [6] the rule did not prevent the cross-examination at issue. Indeed,

[i]t is proper for the State when cross-examining a defense witness to bring out the relationship between the witness and the accused for the purpose of showing bias or to show the probability that the witness is testifying out of fear or under duress.

Rivers v. State, 296 Ga. 396, 402 (6) (768 S.E.2d 486) (2015) (Internal citation omitted). The fact that the evidence may have incidentally placed Davis's character in issue did not proscribe it. Id. And regarding Rule 403, given the strength of this evidence it cannot be said that the danger of unfair prejudice substantially outweighed the value of the sought impeachment evidence.

         3. Davis further contends that the trial court plainly erred by failing to issue a limiting instruction to ensure that the jury did not consider evidence related to Davis's prior altercations with his family involving the police as evidence of his guilt of the crimes on trial. He argues that Rule 404 (b) evidence is properly admissible only when a limiting instruction is given, and that such instruction was necessary in this case in order to cure the prejudicial effect of the evidence.[7] He acknowledges that there was no request below for a limiting instruction but urges that this Court conduct a review for plain error.

         The failure to give a limiting instruction was not plain error in this case. As noted, in order for there to be plain error,

[f]irst, there must be an error or defect - some sort of [d]eviation from a legal rule - that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the [trial] court proceedings. Fourth and finally, if the above three prongs are satisfied, the [appellate court] has the discretion to remedy the error - discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

State v. Kelly, 290 Ga. 29, 33 (2) (718 S.E.2d 232) (2011). Davis does not satisfy the test for plain error. In order to prevail on this third element of prejudice, Davis has the burden to "make an affirmative showing that the error probably did affect the outcome below." Gates v. State, 298 Ga. 324, 327 (781 S.E.2d 772) (2016) (citation and quotation marks omitted). This Court has equated this part of the plain-error standard with the prejudice prong of the test for an ineffective assistance of counsel claim. See Martin v. State, 298 Ga. 259, 277-278 (779 S.E.2d 342) (2015). Indeed, this showing requires "some level of certainty and particularity." Hampton v. State. Ga. (Case No. S17A0984, decided, 2017), quoting United States v. Bramley, 847 F.3d 1, 7 (1st Cir. 2017). ...


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